Pennsylvania State Police v. McGill
2014 Pa. Commw. LEXIS 39
| Pa. Commw. Ct. | 2014Background
- In Feb. 2013 Andrew McGill/Pittsburgh Post‑Gazette requested from Pennsylvania State Police (PSP) any list/database of officers accredited by MPOETC (Municipal Police Officers’ Education and Training Commission).
- PSP denied the request, citing risks to personal security/public safety and that names of undercover/covert officers may be included; invoked RTKL exemptions and § 708(b)(6)(iii) (redaction for undercover officers).
- Requesters appealed to the Office of Open Records (OOR); OOR ordered PSP to produce the list but allowed redaction of names of undercover/covert officers.
- PSP/MPOETC submitted affidavits (Major Elias) showing MPOETC’s database contains names and employers but not officers’ assignments; only local departments know who is undercover/covert.
- Commonwealth Court reversed OOR: requiring PSP to redact undercover names would force PSP/MPOETC to contact 1,100+ local agencies and thereby “create” a record or compile new information in violation of RTKL § 705.
- Court held requesters may obtain accreditation info, but if redaction of undercover identities is sought, requesters must get redacted lists from individual departments (which can assert exemptions) and then provide them to PSP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSP must produce the MPOETC‑accredited officers list with only undercover/covert names redacted | Requesters: PSP must provide the existing database list and may redact undercover names (OOR order acceptable) | PSP: It cannot identify which names to redact because MPOETC lacks assignment data; complying would require creating/compiling new information from 1,100+ local agencies | Court: PSP not required to create/compile new records; OOR order reversed — requester must obtain redacted lists from local departments if needed |
| Whether disclosure is exempt under RTKL public‑safety/personal‑security exemptions | Requesters: PSP failed to prove disclosure would be reasonably likely to result in harm; general concerns insufficient | PSP: Release would risk officers’ safety, impede arrests/prosecutions, aid criminals/terrorists and reveal municipal law‑enforcement capacity | Court: PSP did not meet burden to show these exemptions apply to the entire list; statutory policy favors disclosure absent particularized security concerns |
| Whether requiring redaction imposes a duty to "create" a record under RTKL §705 | Requesters/OOR: Redaction of existing record is permissible; PSP can contact departments to identify undercover officers | PSP: Identifying undercover officers would require compiling new info from many agencies and thus create a record, which §705 forbids | Court: Agreeing with PSP — because MPOETC/PSP lack assignment data, forcing redaction would require creating/compiling new records; §705 bars that duty |
Key Cases Cited
- Office of Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (RTKL presumption of public access; exemptions narrowly construed)
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (standard of review for OOR appeals)
- Department of Environmental Protection v. Legere, 50 A.3d 260 (Pa. Cmwlth. 2012) (agency cannot avoid disclosure by claiming records unknown without a detailed search)
- Department of Environmental Protection v. Cole, 52 A.3d 541 (Pa. Cmwlth. 2012) (drawing information from a database does not constitute creating a record under RTKL)
- Hodges v. Pennsylvania Department of Health, 29 A.3d 1190 (Pa. Cmwlth. 2011) (affidavit claiming nonexistence of a record can establish that fact)
- Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) (agency affidavit establishing record nonexistence is sufficient)